State v. Horner

2021 Ohio 1312

• Court: Ohio Court of Appeals
• Decided: April 13, 2021
• Docket: 2020 CA 00080
• Status: Published

Opinion

[Cite as State v. Horner, 2021-Ohio-1312.]

COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: STATE OF OHIO : Hon. W, Scott Gwin. P.J. : Hon. William B. Hoffman, J. Plaintiff-Appellee : Hon. John W. Wise, J. : -vs- : : Case No. 2020 CA 00080 KENNETH HORNER : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Criminal appeal from the Licking County Court of Common Pleas, Case No. 20CR00049

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: April 13, 2021

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant PAULA SAWYERS KENNETH HORNER PRO SE Assistant Prosecuting Attorney Inmate # 776247 20 South Second Street Belmont Correctional Institution Fourth Floor P.O. Box 540 Newark, OH 43055 St. Clairsville, OH 43950 [Cite as State v. Horner, 2021-Ohio-1312.]

Gwin, P.J.

{¶1} Appellant Kenneth Horner appeals the November 17, 2020 judgment entry

of the Licking County Court of Common Pleas denying his petition for post-conviction

relief. Appellee is the State of Ohio.

Facts & Procedural History

{¶2} On June 8, 2020, appellant pled guilty to the following charges: aggravated

possession of a controlled substance (methamphetamine) in violation of R.C.

2925.11(A)(C)(1)(b), a felony of the third degree; aggravated trafficking in drugs

(methamphetamine), a violation of R.C. 2925.03(A)(2)(C)(1)(c), a felony of the third

degree; and a forfeiture specification. The trial court merged Counts 1 and 2 for purposes

of sentencing, and appellee elected to have appellant sentenced on Count 1. Appellant

was sentenced to a two-year prison term.

{¶3} Appellant filed a petition for post-conviction relief on August 3, 2020.

Appellant argued his right to due process under the U.S. and Ohio Constitutions was

being violated by his continued incarceration, and his continued incarceration constitutes

cruel and unusual punishment. Appellant alleged the following in his petition: he is

confined within three feet of other inmates, there is no social distancing in prison, he is at

high risk of complications if he contracts COVID-19, and the prison has active COVID-19

cases. Appellant included his own affidavit in the petition.

{¶4} In his prayer for relief, appellant requests “an order for his immediate

release” and a new trial.

{¶5} The trial court held a non-oral hearing on appellant’s petition on September

4, 2020. Licking County, Case No. 2020 CA 00080 3

{¶6} The trial court issued a judgment entry denying appellant’s petition without

a hearing on November 17, 2020. The trial court stated a motion for judicial release is a

“more appropriate action than a petition for post-conviction relief and the preferred avenue

when requesting relief due to the COVID-19 pandemic.” Further, the trial court stated the

only support appellant provides is his own self-serving affidavit, which is insufficient to

trigger a right to hearing or justify a granting of the petition.

{¶7} Appellant appeals the November 17, 2020 judgment entry of the Licking

County Court of Common Pleas and assigns the following as error:

{¶8} “I. THE TRIAL COURT ERRED BY NOT FOLLOWING THE MANDATES

OF 2953.21-.23, BY SUMMARILY DISMISSING THE PETITION WITHOUT AN

EVIDENTIARY HEARING AND NOT REVIEWING THE CLAIM OF INEFFECTIVE

ASSISTANCE OF COUNSEL AS THE ALLEGED FACTS, IF TRUE, WOULD MAKE THE

SENTENCE VOID UNDER THE CLAIMED VIOLATIONS OF THE UNITED STATES

CONSTITUTION 6TH, 8TH, AND 14TH AMENDMENTS, AND OHIO CONSTITUTION,

ART. I, SECTIONS 5,6,9,10, AND 16, AND O.R.C. SECTIONS 2945.71-.73, BY NOT

REFERENCING WHERE IN THE RECORD THE CLAIMS HAVE BEEN LITIGATED,

AND BY NOT ISSUING FINDINGS OF FACT AND CONCLUSIONS OF LAW WHEREIN

THOSE FACTS AND CONCLUSIONS ARE SUPPORTED IN THE RECORD, THE

SUMMARY DISMISSAL IS CONTRARY TO LAW.

{¶9} “II. THE TRIAL COURT ERRED BY NOT HOLDING A JUDICIAL RELEASE

HEARING, AND CONSIDERING THE EXTRAORDINARY CIRCUMSTANCES AND

COMPELLING REASONS TO CONSIDER JUDICIAL RELEASE, THE OHIO SUPREME

COURT [STATED] THE FOLLOWING IN LICHTENWATLER V. DEWINE, 2020-OHIO- Licking County, Case No. 2020 CA 00080 4

1465, “I HOPE THAT PETITIONER AND OTHERS IN OHIO DO NOT SEE TODAY’S

DECISION AS THE JUDICIARY’S THROWING UP ITS HANDS AND CLAIMING THAT

THERE IS NOTHING THAT IT CAN DO * * * OHIO’S TRIAL COURTS HAVE THE

POWER TO LIBERALLY AND EXPEDITIOUSLY GRANT APPROPRIATE REQUESTS

FOR JUDICIAL RELEASE.”

I.

{¶10} In the first portion of his assignment of error, appellant contends the trial

court committed error by not issuing findings of fact and conclusions of law. We disagree.

{¶11} The findings of fact and conclusions of law required by R.C. 2953.21(H)

should be explicit enough to give the appellate court a clear understanding of the basis

of the trial court’s decision and enable it to determine the grounds on which the trial court

reached its decision. State v. Jacks, 5th Dist. Licking No. 99 CA 113, 2000 WL 329740

(Feb. 29, 2000), citing State v. Lester, 41 Ohio St.2d 51, 322 N.E.2d 656 (1975). The

purpose of requiring the trial court to include findings of fact and conclusions of law in its

judgment entry is to sufficiently apprise both the petitioner and the potential appellate

court of the grounds for its decision. State v. Staats, 5th Dist. Stark No. 2015CA00207,

2016-Ohio-2921. In its judgment entry, the trial court issued several pages of findings of

fact and conclusions of law, and sufficiently apprised both appellant and this Court of the

grounds for its decision.

{¶12} In the balance of his argument, appellant contends the trial court committed

error in denying his petition for post-conviction relief and in denying his request for an

evidentiary hearing. We disagree. Licking County, Case No. 2020 CA 00080 5

{¶13} R.C. 2953.21 affords a petitioner post-conviction relief “only if the court can

find that there was such a denial or infringement on the rights of the prisoner as to render

the judgment void or voidable under the Ohio Constitution or the United States

Constitution.” State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967).

{¶14} The appropriate standard for reviewing a trial court’s decision to dismiss a

petition for post-conviction relief, without an evidentiary hearing, involves a mixed

question of law and fact. State v. Durr, 5th Dist. Richland No. 18CA78, 2019-Ohio-807.

This Court must apply a manifest weight standard in reviewing a trial court’s findings on

factual issues underlying the substantive grounds for relief, but we must review the trial

court’s legal conclusions de novo. Id. Under R.C. 2953.21, a petitioner seeking post-

conviction relief is not automatically entitled to an evidentiary hearing. State v. Calhoun,

86 Ohio St.3d 279, 714 N.E.2d 905 (1999). The Ohio Supreme Court has recognized,

“[i]n post-conviction cases, a trial court has a gatekeeping role as to whether a defendant

will even receive a hearing.” State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860

N.E.2d

{¶15} We first note that the primary relief appellant seeks is his immediate release

from custody because his continued incarceration during the COVID-19 pandemic

violates his constitutional rights. When a prisoner seeks immediate or speedier release

from incarceration, his or her sole remedy is a petition for writ of habeas corpus. Preiser

v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973); State v. Turner, 11th

Dist. Lake No. 2020-L-066, 2020-Ohio-4796. Because a post-conviction petition is not

the appropriate method through which to seek immediate or quicker release from custody,

the trial court did not commit error in denying appellant’s petition without a hearing. Licking County, Case No. 2020 CA 00080 6

{¶16} Additionally, to the extent appellant does not request immediate release but

instead challenges the conditions of his confinement, a civil rights action under 42 U.S.C.

1983 is the appropriate avenue for appellant to challenge the conditions of his

confinement. Waites v. Gansheimer, 110 Ohio St.3d 250, 2006-Ohio-852 N.E.2d 1204;

State ex rel. Peoples v. Anderson, 73 Ohio St.3d 559, 653 N.E.2d 371 (1995); Aultman

v. Shoop, Case S.D. Ohio No. 2209-cv-3304, 2020 WL 3869478 (claims regarding the

constitutionality of custody in prison because of risks posed by COVID-19 are principally

claims regarding conditions of confinement); State v. Walters, 8th Dist. Cuyahoga No.

71906, 1997 WL 723355 (Nov. 20, 1997) (post-conviction petition is not the proper device

for raising a challenge to incarceration without adequate medical attention; the

appropriate remedy would be to bring an action under 42 U.S.C. 1983).

{¶17} Appellant cites Justice Donnelly’s concurring opinion in State ex rel.

Lichtenwalter v. DeWine and State v. Watkins in support of his argument that

incarceration in prison is cruel and unusual punishment due to the COVID-19 pandemic.

{¶18} However, neither of these cases support appellant’s argument. In

Lichtenwalter, the Ohio Supreme Court granted the State of Ohio’s motion to dismiss the

petitioner’s complaint for mandamus and/or habeas corpus. 158 Ohio St.3d 1476, 2020-

Ohio-1465, 143 N.E.2d 507. In a concurring opinion, Justice Donnelly stated the

Supreme Court did not have the authority in a mandamus proceeding to control the

executive branch’s discretion to exercise their power to reduce prison populations due to

overcrowding emergencies or conditional release of prisoners who are ill. Id. Justice

Donnelly encouraged the Ohio executive branch to take steps to prevent spread of

COVID-19 in prisons and noted that the trial court has the discretion to grant appropriate Licking County, Case No. 2020 CA 00080 7

requests for judicial release that meet the statutory requirements. Id. Even under Justice

Donnelly’s concurrence, a petition for post-conviction relief is not the proper device for

raising a challenge to appellant’s incarceration during the COVID-19 pandemic.

{¶19} In State v. Watkins, 10th Dist. Franklin No. 20AP-313, 2020-Ohio-5203, the

defendant filed an emergency motion to withdraw guilty plea or temporary relief from

judgment. He alleged that, because of underlying medical conditions, he was at a

heightened risk for severe COVID complications. The trial court temporarily released the

defendant from prison pending the ruling on the motion to withdraw plea. The State of

Ohio appealed the trial court’s decision to temporarily release the defendant. The Tenth

District reversed the trial court’s decision, citing the Ohio Supreme Court’s decision in

Lichtenwalter. Id.

{¶20} The Tenth District held that, under Ohio law, once an offender is delivered

to the institution where their sentence is to be served, “the sentence has been executed

and the trial court loses jurisdiction to modify the sentence, absent a clerical error or void

sentence.” Id. The Tenth District also cited the Ohio Supreme Court’s holding that the

sole source of judicial authority for modifying a sentence of an incarcerated felon is judicial

release pursuant to R.C. 2929.20. Id., citing State v. Hitchcock, 157 Ohio St.3d 215,

2019-Ohio-3246, 134 N.E.3d 164. The Ohio Supreme Court declined jurisdiction on

Watkins’ appeal of the Tenth District’s decision. State v. Watkins, 161 Ohio St.3d 1450,

2021-Ohio-534,163 N.E.3d 589.

{¶21} The rationale utilized by the Tenth District in Watkins does not support

appellant’s argument. Appellant was sentenced to two years in prison on Count 1, a

felony of the third degree. R.C. 2929.14(A)(3)(b), provides the court, “shall impose a Licking County, Case No. 2020 CA 00080 8

prison term that shall be one of the following * * * for a felony of the third degree * * * a

definite term of nine, twelve, eighteen, twenty-four, thirty, or thirty-six months.” When

appellant was conveyed to prison, his sentence had been executed and the trial court did

not have authority to modify his sentence unless his sentence was void or there was a

clerical error.

{¶22} Finally, appellant presents no evidence outside the record other than his

own affidavit to support his claim. A defendant advancing a post-conviction petition is

required to present evidence which meets a minimum level of cogency to support their

claims. State v. Scott, 5th Dist. Licking No. 15 CA 81, 15 CA 82, 2016-Ohio-3488. As

self-serving testimony, the trial court could give little or no weight to his affidavit. State v.

Calhoun, 86 Ohio St.3d 279, 714 N.E.2d 905 (1999). Further, a petitioner’s self-serving

affidavit generally does not meet his or her required minimum level of cogency. State v.

Scott, 5th Dist. Licking No. 15 CA 81, 15 CA 82, 2016-Ohio-3488, citing State v. Kapper,

5 Ohio St.3d 36, 448 N.E.2d 823 (1983).

{¶23} The affidavit, documentary evidence, files, and the records do not

demonstrate appellant set forth sufficient operative facts to establish substantive grounds

for relief. Accordingly, the trial court properly denied appellant’s petition for post-

conviction relief without holding an evidentiary hearing. Appellant’s first assignment of

error is overruled. Licking County, Case No. 2020 CA 00080 9

II.

{¶24} In his second assignment of error, appellant contends the trial court

committed error in not holding a hearing on his motion for judicial release and in denying

the motion.

{¶25} We find this issue is not properly before this Court. The trial court issued a

judgment entry denying appellant’s petition for post-conviction relief on November 17,

2020. Appellant filed an appeal of the entry on December 16, 2020. Subsequently, he

filed a motion for judicial release on December 31, 2020, which the trial court denied on

January 7, 2021. Appellant did not file a notice of appeal of the January 7, 2021 judgment

entry.

{¶26} Additionally, even if appellant had properly filed a notice of appeal of the

January 7, 2021 judgment entry denying his motion for judicial release, we lack

jurisdiction to review his second assignment of error.

{¶27} As this Court has previously held, “it is well-established that the denial of a

motion for judicial release is not a final appealable order.” State v. Howard, 5th Dist.

Richland No. 2017 CA 0035, 2017-Ohio-7554; State v. Bennett, 5th Dist. Muskingum No.

CT2005-0009, 2006-Ohio-2812. Accordingly, we lack jurisdiction to address appellant’s

second assignment of error.

{¶28} Based on the foregoing, appellant’s first assignment of error is overruled.

This Court is without jurisdiction to address appellant’s second assignment of error. Licking County, Case No. 2020 CA 00080 10

{¶29} The November 17, 2020 judgment entry of the Licking County Court of

Common Pleas is affirmed.

By Gwin, P.J.,

Hoffman, J., and

Wise, John, J., concur